State v. Liston

• Decision Date: 18 February 1928
• Docket Number: 28391
• Citation: 2 S.W.2d 780,318 Mo. 1222
• Parties: The State v. Frank M. Liston, Appellant
• Court: Missouri Supreme Court

2 S.W.2d 780

318 Mo. 1222

The State v. Frank M. Liston, Appellant

No. 28391

Supreme Court of Missouri

February 18, 1928

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Reversed and remanded.

Frank M. Liston for appellant.

(1) The information herein does not show the defendant to be over the age limit, which must be done under a charge of embezzlement. The defendant's motion to quash the information should have been sustained. State v. Harmon, 106 Mo. 635. (2) Defendant's application, verified with affidavits of two credible disinterested persons of lawful age, for change of venue, should have been granted. Sec. 5180, R. S. 1919; State v. Kocian, 204 S.W. 44. (3) The remarks of the trial judge to the effect that no self-respecting attorney would want to represent the defendant, in open court immediately prior to defendant's arraignment and trial all of which was published in the Columbia Daily Tribune, forty-eight hours before the commencement of the trial of the defendant, was highly prejudicial and calculated to influence and prejudice the jury and is a reversible error. Landers v. Quency, 134 Mo.App. 80. (4) The defendant, under oath, in his motion to quash the jury panel, charged that the panel selected to pass upon the liberty of the defendant, a negro, was selected so as to exclude members of his race on account of race and color, none of which is denied, and notwithstanding, the defendant had no opportunity of offering other and further affidavits and evidence upon said motion, the discrimination is in violation of the rights of the defendant under the laws and Constitution of Missouri and the due process clause of the Fourteenth Amendment to the Constitution of the United States, which the trial court was bound to redress. Neal v. Delaware, 103 U.S. 370; Virginia v. Rivers, 100 U.S. 313. (5) The information alleged ownership of the alleged automobile in Josie Morris for the purpose of trial, the actual owner being A. J. Morris. The information must show and allege the property to belong to its actual owner. State v. Lawler, 130 Mo. 366; State v. Morledge, 164 Mo. 522. The defendant has a right to know who his accuser is. State v. Patterson, 159 Mo. 95. (6) The demurrer, filed at the close of the State's case in chief, should have been sustained. Bond v. Sanford, 134 Mo.App. 477. (7) The evidence disclosed by the entire record was insufficient to justify or support the verdict of the jury, and the same should not be permitted to stand. State v. Prendible, 169 Mo. 353; Champaign v. Hamey, 180 Mo. 790.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The information is in the language of the statute and is sufficient. Sec. 3329, R. S. 1919; State v. Crosswhite, 130 Mo. 362; State v. Stevens, 220 S.W. 846. (2) The statute provides that the truth of the allegations in the petition for a change of venue shall be proved to the satisfaction of the court by regular and competent evidence. The appellant declined to offer any evidence in support of his application. The court therefore properly refused to grant the change of venue. Sec. 3973, Laws 1921, p. 206. (3) The appellant charges that the panel ought to have been quashed because it was selected in such a way as to exclude negroes in violation of the rights of appellant under the laws and the Constitution of Missouri and of the United States. The answer to this charge is that appellant offered no proof to sustain it. In the absence of proof that appellant was discriminated against in the selection of the jury, the court properly overruled the motion. Ragland v. State, 65 So. 777. The appellant further alleges in his motion to quash the panel, that the circuit judge made certain statements which appellant claims were prejudicial. He offered no evidence to support the charge. (4) It was sufficient for the State to show that Josie Morris had possession and control of the automobile. This was proved conclusively. The same rule as to ownership of the property in a robbery case will apply in a case of embezzlement. As against the defendant, the person in possession of the property is the owner. State v. Williams, 183 S.W. 310. (5) The appellant complains the circuit court "failed and refused to instruct and define upon the term 'intent.'" It is not error to fail to define words in every-day use and which have a common and every-day meaning. State v. Weisman, 256 S.W. 741.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

An information was filed in the Circuit Court of Boone County by which appellant was charged with the embezzlement of an automobile owned by one Josie Morris while the same was in his possession as a bailee. The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for two years. He was sentenced accordingly and appealed.

Appellant is a negro and at the time in question was a practicing attorney at law in Columbia, Missouri, where he had resided for about two years. He had formerly practiced law in Kansas City, Missouri, and continued to maintain a law office in Kansas City during his residence in Columbia. He declined the offer of the trial court to appoint counsel to represent him and expressed to the court his preference to conduct his own defense unassisted.

In substance, the proof made by the State shows that early in the evening of Saturday, October 30, 1926, appellant was visiting in the home of his friend, A. J. Morris, a negro who lived on a farm about two miles south of Columbia in Boone County. While appellant was there, officers of the law came and searched the premises and arrested Morris for violating the prohibition law and took him to the county jail in Columbia. This occurrence seemed to leave Morris's wife, Josie Morris, in great distress, and she was very desirous of getting her husband released from custody at the earliest possible moment. Appellant offered her his services without pay and gave her every assurance of accomplishing this purpose, provided he could get to Fulton, Missouri, twenty odd miles east of Columbia, and there confer with Judge Harris, the regular judge of the Circuit Court of Boone County, concerning the matter of a bail bond to be given by her husband. Appellant lived in the home of Professor J. B. Coleman, "head of the colored public schools in Columbia," and drove out to Morris's place in Coleman's automobile on the Saturday evening mentioned. Josie Morris had a Studebaker Roadster (Sport Model) automobile which her husband had bought and given to her about one year before that time. Appellant asked for the use of her car on the trip to Fulton, saying that his car was not in good running order and that he could make a quicker trip in her car. After considerable reluctance, she consented to his use of her car to go to Fulton, but not elsewhere, nor for any other purpose. Appellant further requested "a little money" to pay the charge of calling her by telephone from Fulton and reporting the result of his conference with Judge Harris and, for this purpose, she gave him $ 1.50. When she told appellant there was about five gallons of gasoline in the car, he asked for more gasoline. Shortly thereafter, her car was delivered to appellant at a gasoline-filling station in Columbia, where she had ten gallons of gasoline put in the car. Immediately after taking charge of the car, appellant started west out of Columbia with Kansas City as his objective. "About seven or eight miles" west of Boonville, Missouri, he, in some way, lost control of the car and it was caused to run into a ditch and turn over on its side, the car being thereby greatly damaged and appellant injured to some extent. He arranged for the car to be taken to a garage in Boonville and spent the night in that city at the home of Butler Nichols. About noon the next day, he proceeded on his trip to Kansas City by rail, first going east to Tipton on one train, and from there west to Kansas City on another train. At Tipton he had a man by the name of George Williams to send a telegram to Professor Coleman at Columbia. The information contained in the telegram is not disclosed but, after receiving it, Professor Coleman notified Josie Morris that her car was in a garage at Boonville, where she later recovered it. Appellant remained in Kansas City until December 1, 1926, when he was arrested there on this charge and brought back to Columbia.

Josie Morris testified that, in discussing the importance of his trip to Fulton, appellant said: "I am in power. I belong to the court authority, and I am in power to get Morris out to-night. I will get a permit from Judge Harris and I am empowered to have him released at once. If I don't get Mr. Morris out of jail to-night I will report to God Almighty why not, and I will bring this dollar and a half back and lay it on the dining room table like you gave it to me. Mrs. Morris, I am going to bring results."

That, when she proposed that her son, Hubert, go along and drive the car, appellant said: "Oh, no, I can drive anything that runs on four wheels and has a motor in it. I have a white friend that means more to me than Hubert."

She further testified that appellant said nothing about going to Kansas City, and made no mention of starting habeas corpus proceedings, in connection with his plan of obtaining her husband's release on bond.

Her testimony was supported by that of her son, Hubert, in nearly every particular. He further testified that when he had ten gallons of gasoline put in his mother's car, immediately before turning the car over to appellant at the filling station, appellant "seemed to want more" and said to him "I don't want to have any trouble. I am trying to make the trip so speedily. I want...